Is Kissing Illegal in India?

Indian designer Suneet Varma, right, kissed actress Amrita Rao after the conclusion of his show at the Wills India Fashion Week Spring Summer 2010 in New Delhi on Oct. 27, 2009.

It isn’t every day that Indian men in their sixties openly discuss which sex acts are “natural” and which ones aren’t. But as the appeals against a 2009 Delhi High Court judgment that marked a huge step forward for gay rights proceed before the Supreme Court, that’s just what is happening.

The High Court said Section 377 of the Indian Penal Code was in violation of the Constitution, and infringed upon equal rights and personal liberty. The statute prohibited people from engaging in “carnal acts against the order of nature.”

The judgment decriminalized gay sex – as well as sex acts between heterosexual couples that might have been seen as falling under this definition.

More than two years on, the case is before the Supreme Court, after several religious groups opposed to homosexuality challenged the judgment. Since the phrase “against the order of nature” isn’t defined further, nor are specific acts named, a lot of the discussion before the two-judge bench revolves around which sex acts are prohibited.

So the words “buggery,” sodomy and so on keep cropping up.

Some of the lawyers who are arguing for the 2009 judgment to be upheld are trying to show, among other things, that the words “against the order of nature” are so vague that it is impossible to follow the law in a way that is not arbitrary. As a result, the law leads to discrimination and is unconstitutional, they say. They’re also likely to argue that what’s considered normal or natural changes over time.

Meanwhile, lawyers for the religious groups are arguing that the phrase “against the order of nature” can be defined with the help of logic and knowledge of the human anatomy.

K. Radhakrishnan, who is representing an organization called Trust God Ministries, told the bench on Wednesday that they should look at what the different parts of the body need to do to sustain life.

“As far as the anus is concerned it is the end of the digestive system and through that waste products are flushed out,” he said.

Similarly, the mouth is used for eating, he told the court.

After the hearing on Thursday, he said in a brief conversation that the mouth can be used for “uttering words.”

“These two organs are not intended at all for sexual use,” he said. “If you are putting these organs to that purpose, this is abuse of the body. All these things are ordained by nature.”

So…where does that leave kissing? This is not an act through which food is consumed – generally speaking. Nor is it necessary to sustain life. Taken to its logical extreme, if the language of Section 377 is interpreted the way Mr. Radhakrishnan is advocating, that would leave kissing beyond the bounds of the law, never mind everything else they’re discussing in Courtroom 6.

Were the judges swayed by the argument? Indians might not find out till Dec. 11, 2013, when Justice G.S. Singhvi, the senior judge on the bench is due to retire. It isn’t uncommon for Indian judges to put off controversial judgments until a day or so before they’re due to step down.

By that time, Justice Singhvi may be more than happy to kiss this case goodbye. Not literally, of course.